WTF? Are We As Screwed as We Think We Are?

Alert: If we sue the government we are only suing ourselves. Go after the "Deciders." 

White House: Obama 'absolutely' stands behind effort to throw out warrantless wiretapping suit

04/10/2009 @ 8:29 am

Filed by Eric Brewer 

President Barack Obama endorsed a Justice Department move to dismiss a case in which the National Security Agency is being sued over its warrantless wiretapping program, because he believes the case presents a risk to national security, the White House told Raw Story Thursday.

In response to a question at Thursday’s press briefing, White House Press Secretary Robert Gibbs said that President Obama stands firmly behind a Justice Department brief filed last week which aims to have a civil liberties group’s lawsuit dismissed. 

He “absolutely does,” Gibbs said. “Obviously, these are programs that have been debated and discussed, but the President does support that viewpoint.”

The Electronic Frontier foundation is suing the NSA for damages over a program in which the government tracked the phone calls and emails of thousands of Americans following the Sept. 11, 2001 attacks.

In their filing Friday, the Justice Department argued that the case should be dismissed because information surrounding the program was a “state secret” and therefore couldn’t be litigated or discussed. It also proposed that the government was protected by “sovereign immunity” under federal wiretapping statutes and the Patriot Act, arguing that the United States could only face lawsuits if they willfully elected to disclose intelligence obtained by wiretapping. 

In other words, the motion posited that government agencies couldn’t be sued for spying because they never intentionally told anyone they were engaged in warrantless wiretaps, even if such a program violated the law.

During his presidential campaign, then-Sen. Barack Obama criticized the Bush Administration for its use of “state secrets” as a legal argument to prevent lawsuits from moving forward. His campaign website listed state secrets under the headline “Problems.”

“The Bush administration has ignored public disclosure and has invoked a legal tool known as the ‘state secrets’ privilege more than any other previous administration to get cases thrown out of court,” his campaign site said.

Raw Story questioned Gibbs about the apparent contradiction.

“Before he was elected, the President said that the Bush administration had abused the state secrets privilege,” this reporter asked. “Has he changed his mind?”

“No,” Gibbs replied. “I mean, obviously, we're dealing with some suits, and the President will -- and the Justice Department will make determinations based on protecting our national security.”

“So he still thinks that the Bush administration abused the state secrets privilege?” Raw Story asked.

“Yes,” Gibbs said.

The invocation of state secrets privilege as a means of derailing suits against the government is nothing new. The Obama Justice Department made this claim in February, in response to a suit brought by victims of extraordinary rendition. But the Department’s “sovereign immunity” argument is unexpected.

A close review of the Department's brief suggests that the Justice Department took a quote out of context in an effort to bolster their case.

The Department asserts that the United States can’t be sued because it’s specifically excluded under the 1986 Electronic Communications Privacy Act. “In the Wiretap Act and ECPA, Congress expressly preserved sovereign immunity against claims for damages and equitable relief, permitting such claims against only a 'person or entity, other than the United States,'” the Department wrote.

In that section of the law, however, the phrase “other than the United States” is there only because those sections specify the penalties to be used in cases in which the law is violated by someone other than the United States. In contrast, another section of the law specifies penalties for violations of the law by the United States. (More on the law can be read at section 2520 (in chapter 119) and section 2707.)

Some legal scholars have raised eyebrows at the claim.

Orin Kerr, professor at George Washington School of Law, believes that the Administration's argument they can't be prosecuted unless they willfully provide wiretapping intelligence seems spurious.

"The statute itself says 'any willful violation,' and it expressly covers all of Chapter 121 (the Stored Communications Act), all of Chapter 119 (the Wiretap Act), and those explicit sections of the [Foreign Intelligence Surveillance Act]," Kerr wrote.

The preceding article was a White House report from Eric Brewer, who periodically attends White House press briefings for Raw Story. Brewer is also a contributor at BTC News. He was the first person to ask about the Downing Street memo at a White House briefing.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.

Obama Administration quietly expands Bush's legal defense of wiretapping program 04/07/2009 @ 10:01 am Filed by John Byrne Advertisement In a stunnin

We can only hope that he is spying on Dick Cheney and the NeoCons.

04/07/2009 @ 10:01 am

Filed by John Byrne

In a stunning defense of President George W. Bush's warrantless wiretapping program, President Barack Obama has broadened the government's legal argument for immunizing his Administration and government agencies from lawsuits surrounding the National Security Agency's eavesdropping efforts.

In fact, a close read of a government filing last Friday reveals that the Obama Administration has gone beyond any previous legal claims put forth by former President Bush.

Responding to a lawsuit filed by a civil liberties group, the Justice Department argued that the government was protected by "sovereign immunity" from lawsuits because of a little-noticed clause in the Patriot Act. The government's legal filing can be read here (PDF).

For the first time, the Obama Administration's brief contends that government agencies cannot be sued for wiretapping American citizens even if there was intentional violation of US law. They maintain that the government can only be sued if the wiretaps involve "willful disclosure" -- a higher legal bar.

"A 'willful violation' in Section 223(c(1) refers to the 'willful disclosure' of intelligence information by government agents, as described in Section 223(a)(3) and (b)(3), and such disclosures by the Government are the only actions that create liability against the United States," Obama Assistant Attorney General Michael Hertz wrote (page 5).

Senior Staff Attorney Kevin Bankston at the Electronic Frontier Foundation, which is suing the government over the warrantless wiretapping program, notes that the government has previously argued that the government had "sovereign immunity" against civil action under the FISA statute. But he says that this is the first time that they've invoked changes to the Patriot Act in claiming the US government is immune from claims of illegal spying under any other federal surveillance statute.

"They are arguing this based on changes to the law made by the USA PATRIOT Act, Section 223," Bankston said in an email to Raw Story. "We've never been fans of 223--it made it much harder to sue the U.S. for illegal spying, see an old write-up of mine at: http://w2.eff.org/patriot/sunset/223.php --but no one's ever suggested before that it wholly immunized the U.S. government against suits under all the surveillance statutes."

Salon columnist and constitutional scholar Glenn Greenwald -- who is generally supportive of progressive interpretations of the law -- says the Obama Administration has "invented a brand new claim" of immunity from spying litigation.

"In other words, beyond even the outrageously broad 'state secrets' privilege invented by the Bush administration and now embraced fully by the Obama administration, the Obama DOJ has now invented a brand new claim of government immunity, one which literally asserts that the U.S. Government is free to intercept all of your communications (calls, emails and the like) and -- even if what they're doing is blatantly illegal and they know it's illegal -- you are barred from suing them unless they 'willfully disclose' to the public what they have learned," Greenwald wrote Monday.

He also argues that the Justice Department's response is exclusively a product of the new Administration, noting that three months have elapsed since President Bush left office.

"This brief and this case are exclusively the Obama DOJ's, and the ample time that elapsed -- almost three full months -- makes clear that it was fully considered by Obama officials," Greenwald wrote. "Yet they responded exactly as the Bush DOJ would have. This demonstrates that the Obama DOJ plans to invoke the exact radical doctrines of executive secrecy which Bush used -- not only when the Obama DOJ is taking over a case from the Bush DOJ, but even when they are deciding what response should be made in the first instance."

"Everything for which Bush critics excoriated the Bush DOJ -- using an absurdly broad rendition of 'state secrets' to block entire lawsuits from proceeding even where they allege radical lawbreaking by the President and inventing new claims of absolute legal immunity -- are now things the Obama DOJ has left no doubt it intends to embrace itself," he adds.

Both the Electronic Frontier Foundation and the American Civil Liberties Union say the "sovereign immunity" claim in the context of the case goes farther than any previous Bush Administration claims of wiretap immunity.

Writing about the changes to the Patriot Act last year, the EFF asserted that revisions to the Act involved troubling new developments for US law.

"Unlike with any other defendant, if you want to sue the federal government for illegal wiretapping you have to first go through an administrative procedure with the agency that did the wiretapping," the Foundation wrote. "That means, essentially, that you have to politely complain to the illegal wiretappers and tip them off to your legal strategy, and then wait for a while as they decide whether to do anything about it before you can sue them in court."

Moreover, they said, "Before PATRIOT, in addition to being able to sue for money damages, you could sue for declaratory relief from a judge. For example, an Internet service provider could ask the court to declare that a particular type of wiretapping that the government wants to do on its network is illegal. One could also sue for an injunction from the court, ordering that any illegal wiretapping stop. PATRIOT section 223 significantly reduced a judge's ability to remedy unlawful surveillance, making it so you can only sue the government for money damages. This means, for example, that no one could sue the government to stop an ongoing illegal wiretap. At best, one could sue for the government to pay damages while the illegal tap continued!"

The Obama Administration has not publicly commented on stories that revealed their filing on Monday.

Correction: EFF Attorney Kevin Bankston's comments about the government's previous sovereign immunity claims were incorrectly summarized in an earlier version of this article. They have been corrected.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. I.U. has no affiliation whatsoever with the originator of this article nor is I.U endorsed or sponsored by the originator.)


The Nazis, Fascists and Communists were political parties before they became enemies of liberty and mass murderers.